Erevia, Joe John v. State ( 2000 )

NUMBER 13-99-232-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

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JOE JOHN EREVIA, Appellant,

v.

THE STATE OF TEXAS, Appellee.

____________________________________________________________________

On appeal from the 23rd District Court of Brazoria County, Texas.

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O P I N I O N

Before Chief Justice Seerden and Justices Dorsey and Yañez

Opinion by Justice Yañez

A jury found appellant, Joe John Erevia, guilty of aggravated robbery.⁽¹⁾ He pleaded "true" to two enhancement paragraphs in the indictment for prior convictions for forgery⁽²⁾ and burglary of a building.⁽³⁾ The jury assessed punishment at thirty years imprisonment and a $5,000 fine. He now appeals his conviction.

By three points of error, appellant contends: (1) the evidence is factually insufficient to support his conviction; (2) the evidence is legally insufficient to support his conviction; and (3) the trial court erred in admitting two prior convictions for purposes of impeachment in violation of rule 609 of the Texas Rules of Evidence. We affirm.

The victim, Robert Measles (who was ninety years old when the incident occurred), testified that on January 5, 1997, appellant drove to Measles's home⁽⁴⁾ in a car he had purchased from Measles few months earlier. Appellant had made no payments on the car. When Measles came to the door, appellant told him to come out to the car and he would pay him. When Measles reached the car, however, appellant grabbed Measles's wallet out of his shirt pocket and jumped into the car. The wallet contained approximately $200. Measles grabbed the open car door, but appellant drove off, throwing Measles to the pavement. Measles suffered a skinned face and injured shoulder. Shortly thereafter, Robert Moore, an officer with the Brazoria County Sheriff's Department, and Chris Kincheloe, an investigator with the sheriff's department, were called to the scene. After talking to Measles, Kincheloe obtained a warrant for appellant's arrest, and went by appellant's house, but he was not there. Appellant's vehicle was found parked in nearby Sweeny, in front of the home of appellant's brother. After talking to appellant's nephew, Cancel headed back to appellant's home. On the way, however, he was told appellant had fled on foot after officers had attempted to arrest him at his home. A canine unit was called in, and appellant was tracked from his home to a mobile home near Measles's home. Appellant was found hiding under the mobile home.

Legal Sufficiency

By his second point of error, appellant contends the evidence is legally insufficient to support his conviction. He argues there is no evidence in the record that he intentionally, knowingly, or recklessly caused bodily injury to Measles.

When reviewing the legal sufficiency of the evidence, the appellate court shall look at all the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Johnson v. State, No. 1915-98, 2000 Tex. Crim. App. LEXIS 12, at *14-*15 (Tex. Crim. App. Feb. 9, 2000). The standard is the same for cases based on both direct and circumstantial evidence. Earhart v. State, 823 S.W.2d 607, 616 (Tex. Crim. App. 1991); Rosillo v. State, 953 S.W.2d 808, 811 (Tex. App.--Corpus Christi 1997, pet. ref'd). We measure the legal sufficiency of the evidence by the elements of the offense as defined by the hypothetically correct jury charge, which accurately sets out the law, is authorized by the indictment, and does not unnecessarily increase the State's burden. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997); Cano v. State, 3 S.W.3d 99, 105 (Tex. App.--Corpus Christi 1999, pet. ref'd.). The jury, as the sole judge of the credibility of the witnesses and the weight to be given their testimony, is free to accept or reject all or any part of the testimony of any witness. Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1981); Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986), cert. denied, 488 U.S. 872 (1988).

Section 29.03 of the penal code provides that a person commits aggravated robbery if he commits the offense of robbery and causes bodily injury to a person sixty-five years or older. Tex. Penal Code Ann. § 29.03(a)(3)(A) (Vernon 1994). A person commits the offense of robbery if, in the course of committing theft and with intent to obtain or maintain control of property, he intentionally, knowingly, or recklessly causes bodily injury to another. Tex. Penal Code Ann. § 29.02(a)(1)(Vernon 1994). The phrase "in the course of committing theft" means conduct which occurs in an attempt to commit, during commission, or in immediate flight after the attempt or commission of a theft. Tex. Penal Code Ann. § 29.01(1) (Vernon 1994); Caldwell v. State, 943 S.W.2d 551, 552 (Tex. App.--Waco 1997, no pet.). Actions causing bodily injury in an aggravated robbery are sufficient if they occur during the malefactor's flight from the robbery. Oggletree v. State, 851 S.W.2d 367, 369 (Tex. App.--Houston [1st Dist.] 1993, pet. ref'd).

Here, appellant contends that Measles's own actions, in grabbing the open car door, caused him to suffer injuries. Measles testified that appellant grabbed the wallet from Measles's jacket pocket, jumped in the car, and with Measles holding on to the car door, drove away abruptly, throwing him to the pavement. Officers Moore and Cancel testified that Measles had abrasions on his head. Photographs showing Measles's injuries were introduced into evidence. Cancel testified that based on his understanding of the facts as they occurred, the automobile involved in the robbery was used as a deadly weapon because it was capable of causing serious bodily injury or death. We hold the evidence is legally sufficient to support appellant's conviction. We overrule appellant's second point of error.

Factual Sufficiency

By his first point, appellant argues that the evidence was factually insufficient to support his conviction. He argues that because Measles did not have good eyesight, the evidence was insufficient to support appellant's conviction. He also argues it was significant the police did not recover the stolen wallet. He further argues that because Measles grabbed hold of the open car door, he, rather than appellant, was responsible for causing the injuries he suffered.

When we review a factual sufficiency of the evidence point of error, we review the evidence in support of and contrary to the trier of fact's findings to determine whether the evidence is so weak that it renders the verdict clearly wrong and manifestly unjust or the verdict is contrary to the evidence. Johnson, Tex. Crim. App. LEXIS 12, at *21; Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996). We consider all the evidence in the record related to the appellant's sufficiency challenge, comparing the weight of the evidence that tends to prove guilt with the evidence that tends to disprove it. Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997). However, we are not free to reweigh the evidence and set aside a jury verdict merely because we believe that a different result is more reasonable. Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997); Clewis, 922 S.W.2d at 135. Only if the verdict is against the great weight of the evidence presented at trial so as to be clearly wrong and unjust, will we reverse the verdict and remand for a new trial. Clewis, 922 S.W.2d at 133-34; Rosillo, 953 S.W.2d at 813.

Although Measles has poor eyesight, he testified that his vision improves at close range. He was able to identify appellant at trial. Measles testified appellant was "about five feet" away while they were talking at the car, and at one point, appellant was close enough to reach into Measles's jacket pocket and take the wallet. Appellant testified he had known Measles for several months and had purchased the car from him. He also admitted he had seen Measles on several occasions prior to the robbery. Appellant lived up the street from Measles. Officer Moore testified that when he first arrived at Measles's home following the incident, Measles told him appellant was the person who had robbed him.⁽⁵⁾

The failure by the police to locate the stolen wallet is not significant. Approximately six or seven hours elapsed between the robbery and the time appellant was found hiding under a nearby mobile home. The jury could reasonably have concluded that because there was ample opportunity for appellant to dispose of the stolen property, the failure to find it in his possession was unimportant.

Appellant argues that by grabbing the open car door, Measles caused his own injuries. Measles testified that when he grabbed the open door, appellant put the car into gear and "jerked [him] down." He testified that he skinned his face and hurt his shoulder. Moore stated that when he arrived at Measles's house, Measles had a "big red knot" on his head and his right hand was injured. Photographs of Measles's injuries were introduced at trial. The jury was free to believe that the driver's sudden acceleration of the car, with Measles holding on, caused Measles's injuries.

Appellant contends that on the day the robbery occurred, he had loaned his car to Percy Moore, a man who worked with his brother. Appellant claims that on the day of the robbery, he traveled to Houston with a friend, Robert Garcia. Neither Robert Garcia nor Percy Moore testified at trial. When the patrol officers arrived at appellant's home, he ran. Appellant testified he ran from the police because he knew there was an outstanding warrant for his arrest for possession of marijuana.

We hold that the evidence is factually sufficient to support appellant's conviction. We overrule appellant's first point.

Impeachment with Prior Convictions

By his third point, appellant complains that the trial court erred when it allowed the State to impeach him by improperly questioning him about two remote prior convictions, his 1985 burglary conviction and 1986 forgery conviction. Appellant claims the State failed to show that the probative value of the prior convictions substantially outweighed their prejudicial effect, and therefore, that the trial court's decision to admit evidence of the convictions was harmful error. The State argues the trial court did not err in admitting the 1985 and 1986 convictions, and that even if the court erred in admitting the forgery and burglary convictions, any such error was harmless, because the State also introduced as impeachment evidence, without objection, two additional prior convictions for theft committed in 1996.⁽⁶⁾ Admission of appellant's recent convictions for theft are not challenged on appeal.

Rule 609 of the Texas Rules of Evidence governs the admissibility of prior convictions used to impeach a witness.⁽⁷⁾

Rule 609(a) allows the admission of a prior conviction into evidence for purposes of impeachment if the prior conviction involved a felony or a crime of moral turpitude, and the court determines the probative value "outweighs" its prejudicial effect. See Tex. R. Evid. 609(a). In reviewing the trial court's decision admitting into evidence a prior conviction, we must accord the trial court "wide discretion." Theus v. State, 845 S.W.2d 874, 881 (Tex. Crim. App. 1992).

In the case of a prior conviction and release that took place more than ten years before being admitted at trial, the probative value must "substantially outweigh" the prejudicial effect.⁽⁸⁾

Tex. R. Evid. 609(b); Butler v. State, 890 S.W.2d 951, 954 (Tex. App.--Waco 1995, pet. ref'd). Under rule 609(b), if the prior conviction was more than ten years before trial, the probative value of the prior conviction must substantially outweigh the prejudicial effect and not simply outweigh the prejudicial effect, as under rule 609(a). (emphasis added). Hernandez v. State, 976 S.W.2d 753, 755 (Tex. App.--Houston [1st Dist.] 1998, pet. ref'd); Stone v. State, 17 S.W.3d 348, 349 (Tex. App.--Corpus Christi 2000, no pet.). As the court pointed out in Hernandez, however, an appellate court may find that, while a prior conviction is more than ten years old, later convictions for felonies or misdemeanors involving moral turpitude remove the taint of remoteness from the prior convictions. Id. In that circumstance, the rule 609(a) outweigh standard is appropriate because the "tacking" of the intervening convictions renders a conviction older than ten years not remote. Id.

The State impeached appellant with evidence of his 1985 burglary and 1986 forgery convictions. Appellant's trial in the present case took place on March 3, 1999. Appellant was convicted of forgery on June 16, 1986, and was sentenced to four years imprisonment.⁽⁹⁾ His probation was revoked in the burglary case on July 21, 1986, and he was sentenced to four years confinement.⁽¹⁰⁾ The State argues that if appellant served a four-year sentence in each case, beginning the forgery sentence on August 13, 1985, and the burglary sentence on August 14, 1985, his date of release may have been as late as August 14, 1989, thereby rendering the convictions subject to the rule 609(a) "outweigh" standard rather than the rule 609(b) "substantially outweigh" standard. The record before us does not reflect the date appellant was released in either case.⁽¹¹⁾ Even assuming, however, that the burglary and forgery convictions are more than ten years old, tacking appellant's two intervening convictions for theft⁽¹²⁾ allows us to analyze the question of admissibility as if the forgery and burglary convictions were not remote. See Jackson v. State, 11 S.W.3d 336, 339 (Tex. App.--Houston [1^st Dist.] 1999, pet. ref'd); Hernandez, 976 S.W.2d at 755. Therefore, the rule 609(a) standard is appropriate to review the admissibility of appellant's prior forgery and burglary convictions for purposes of impeachment. The trial court should have applied the guidelines and factors set out in Theus, 845 S.W.2d at 880-81, to determine whether the probative value of the prior convictions outweighed their prejudicial effect. Tex. R. Evid. 609(a); Jackson, 11 S.W.3d at 339.

The court of criminal appeals has set out a number of factors to be considered in weighing the probative value of a conviction against its prejudicial effect under rule 609. Theus, 845 S. W. 2d at 880-81. A non-exclusive list of such factors includes: (1) the impeachment value of the prior crime, (2) the temporal proximity of the past crime relative to the charged offense and the witness's subsequent history, (3) the similarity between the past crime and the offense being prosecuted, (4) the importance of the defendant's testimony, and (5) the importance of the credibility issue. Id.

The record reflects that the trial court, in admitting evidence of the prior burglary and forgery convictions, found that the "probative value would exceed any prejudicial effect." Analyzing the court's decision under the Theus factors, we find that the court did not abuse its discretion when it allowed the State to impeach appellant with the prior forgery and burglary convictions. First, forgery and burglary are crimes of deception. The impeachment value of a crime involving deception is higher than the impeachment value of a crime involving violence. Id. at 881. Accordingly, the impeachment value of appellant's prior convictions for forgery and burglary was high. The first factor weighs in favor of admission.

Second, although appellant's convictions for burglary and forgery were in 1985 and 1986, he was convicted in 1998 for two thefts committed in 1996. Appellant's 1985 and 1986 burglary and forgery convictions are not remote because his prior theft convictions can be tacked onto his 1985 and 1986 convictions. See Hernandez, 976 S.W.2d at 756. Appellant's two theft convictions demonstrate that he has a recent propensity for running afoul of the law. See, e.g., Guerra v. State, 648 S.W.2d 715, 718 (Tex. App.--Corpus Christi 1982, pet. ref'd). This factor weighs toward admissibility of the prior burglary and forgery convictions.

Third, appellant's prior convictions were for burglary and forgery, neither of which is an offense similar to aggravated robbery. If the past crime and the charged crime are similar, the third factor weighs against admission. Theus, 845 S.W.2d at 881. The rationale behind this is that the admission for impeachment purposes of a crime similar to the crime charged presents a situation where the jury would convict on the perception of a past pattern of conduct, instead of on the facts of the charged offense. Id. Thus, the similarity factor weighs in favor of admission of the prior burglary and forgery convictions.

The fourth and fifth factors---importance of the defendant's testimony and his credibility---are related. Id. When the case involves the testimony of only the defendant and the State's witnesses, the importance of the defendant's credibility escalates. Id; Simpson v. State, 886 S.W.2d 449, 453 (Tex. App.--Houston [1st Dist.] 1994, pet. ref'd); see Polk v. State, 865 S.W.2d 627, 631 (Tex. App.--Fort Worth 1993, pet. ref'd). As the importance of the defendant's credibility escalates, so does the need to allow the State an opportunity to impeach his credibility. Theus, 845 S. W. 2d at 881. Appellant presented an alibi defense. He claimed that he was in Houston with Robert Garcia on the day the robbery occurred. He also testified that on that day, he loaned his car to Percy Moore, a man who worked for his brother. Normally, when a defendant presents an alibi defense, the defendant's credibility is not a critical issue because the defendant will have other witnesses who will be able to give evidence of his defense. Id. However, appellant presented no witnesses other than his own testimony. Therefore, appellant's credibility was critical to his defense. However, although there was a significant need to allow the State an opportunity to impeach appellant's credibility, the State could have relied solely on appellant's two recent theft convictions to impeach him. The prior theft convictions lessened the State's need to impeach appellant with the remote burglary and forgery convictions.

When we weigh all the factors, we find the scale tipped in favor of admissibility of the prior burglary and forgery convictions. Three of the five factors favor allowing the State to impeach appellant with the prior burglary and forgery convictions. We allow the trial court wide discretion in weighing these factors and deciding to admit the prior conviction. Id. A ruling permitting use of prior convictions to impeach will be reversed only upon a showing of a clear abuse of discretion. Id. We cannot say that the court committed an abuse of discretion. We overrule appellant's third point.

We AFFIRM the judgment of the trial court.

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LINDA REYNA YAÑEZ

Justice

Do not publish. Tex. R. App. P. 47.3.

Opinion delivered and filed this the

31st day of August, 2000.

1. Tex. Pen. Code Ann. §§ 29.02, 29.03(a)(3)A (Vernon 1994).

2. Appellant was convicted of forgery on June 16, 1986.

3. Appellant pleaded guilty to burglary of a building on February 15, 1985. The trial court sentenced him to ten years confinement, but suspended the sentence and placed appellant on probation for a period of ten years. On July 21, 1986, his probation was revoked and he was sentenced to four years imprisonment.

4. Measles lived in a mobile home located on County Road 204 in Wild Peach, a settlement near the City of Brazoria in Brazoria County. Appellant lived in a mobile home "up the street" from Measles on County Road 348.

5. Appellant notes that Kincheloe testified Measles told him "Joe Iberia" was the person who robbed him. Measles testified, however, that he can't pronounce appellant's last name. The jury could reasonably have concluded that Measles identified "Joe John," as he did in court, but mispronounced appellant's last name when talking to Cancel.

6. On June 4, 1998, appellant pleaded guilty to a Class A misdemeanor theft committed on December 18, 1996. See Tex. Penal Code Ann. § 31.03(e)(3) (Vernon Supp. 2000). On June 4, 1998, he also pleaded guilty to a Class B misdemeanor theft committed on December 1, 1996. See id. at § 31.03(e)(2).

7. Texas Rule of Evidence 609(a) provides:

(a) General rule. For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted if elicited from the witness or established by public record but only if the crime was a felony or involved moral turpitude, regardless of punishment, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to a party.

Tex. R. Evid. 609(a). This rule, effective March 1, 1998, is substantially identical to former Texas Rule of Criminal Evidence 609(a).

8. Texas Rule of Evidence 609(b) provides:

(b) Time Limit

Evidence of a conviction under this rule is not admissible if a period of more than ten (10) years has elapsed since the date of the conviction or the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs the prejudicial effect.

Tex. R. Evid. 609(b). This rule, effective March 1, 1998, is identical to former Texas Rule of Criminal Evidence 609(b).

9. Appellant's sentence for the forgery conviction notes that the sentence was to begin August 13, 1985.

10. The judgment revoking appellant's probation in the burglary case states that his four-year sentence was to begin August 14, 1985. It also notes that his "time credited" was eleven months, seven days.

11. Appellant testified at trial that he served two years. In its argument to the jury at the punishment hearing, the State told the jury that appellant was released from prison on March 11, 1988.

12. As noted, evidence was introduced at the guilt/innocence phase of the trial that on June 4, 1998, appellant pleaded guilty to two misdemeanor thefts committed on December 1, 1996 and December 18, 1996. At the punishment phase, the State also introduced evidence that appellant pleaded guilty to an assault charge in 1989 and to a possession of marijuana charge in 1992. Assault and possession of marijuana are not crimes of moral turpitude, see Hernandez v. State, 976 S.W.2d 753, 756 (Tex. App.--Houston [1st Dist.], pet. ref'd, 980 S.W.2d 652 (Tex. Crim. App. 1998), and the trial court correctly did not consider them in its analysis. Accordingly, we do not consider them in our analysis.